Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 28.11.2012
Date of order : 28.11.2012
Petitioner : Syed Nusrat Nasir through Mr.Muhammad Kaukab Sabahuddin, advocate.
Versus
Respondents : Federal Tax Ombudsman and others through Mr. Asaf Vardag, advocate Mr. Dilawar Hussain, Standing Counsel.
JUDGMENT
Aqeel Ahmed Abbasi, J. Through instant petition, the petitioner has sought relief from this Court with the following prayers:-
(a) Declare that the FTO has no authority to admit a complaint against a Quasi Judicial order passed by an officer acting in his Quasi Judicial capacity under the relevant fiscal law.
(b) Declare that no administrative scrutiny can be made in respect of a Quasi Judicial order except by the relevant Quasi Judicial hierarchy provided under the law.
(c) Declare that the Quasi Judicial officers are not subordinate to administrative control in exercise of their statutory powers and are subject to control of the same Quasi Judicial nature as provided under the relevant law.
(d) Declare that the issuance of Charge Sheet by respondent No.2 amounts to interference in the Quasi Judicial powers of the appropriate officer which the law prohibits in express terms and it undermines the concept of independence of judiciary.
(e) Declare that the issuance of impugned Charge Sheet is discriminatory as a number of orders of appropriate adjudicating officers are reversed/amended by the appellate hierarchy provided under relevant laws and no Charge Sheet has ever been issued to those officers.
(f) Declare that the impugned Charge Sheet is ab-initio void, illegal and corum non judice.
(g) Restrained respondent No.3 from conducting the proceedings/ex-parte proceedings or directing the petitioner to submit the reply to the impugned Charge Sheet and restrain respondent No.4 from passing any adverse orders till the decision of this petition.
2. Brief facts as stated by the petitioner are that the petitioner while performing his duties as Additional Collector (Preventive) in the Collectorate of Customs (Preventive), Karachi passed the Order-in-Original No.12/2009 dated 26.02.2009 whereby after adjudication and on the basis of evidence available on record, ordered for the release of seized vehicle to its bonafide owner. Subsequently, the Collector of Customs (Preventive) in exercise of power under Section 195 of the Customs Act, 1969 re-opened the case to examine the propriety of the order-in-original passed by the petitioner and vide Order No.001/2009 dated 05.05.2009 again confiscated and seized the subject vehicle. Being aggrieved by such order passed by the Collector of Customs (Preventive) under Section 195 of the Customs Act, 1969, the owner of the vehicle filed a complaint of mal-administration by Collector of Custom (Preventive) bearing No.367-K/2009 on 09.06.2009. In addition to such complaint the owner also filed an Appeal No.K-403/2009 before the Customs Appellate Tribunal against the order of the Collector of Customs (Preventive) passed under Section 195 of the Customs Act, 1969. The learned Federal Tax Ombudsman vide his order dated 25.01.2010 dismissed the complaint of the owner and held that the order of the Collector of Custom (Preventive) under Section 195 of the Customs Act, 1969, an order, however, while passing such order recommendations were made against the petitioner i.e. Additional Collector (Adjudication) for an action against him under the removal from service (Special Powers) Ordinance, 2000. Pursuant to said decision and compliance to the recommendations of the learned Federal Tax Ombudsman, the petitioner has been issued statement of allegations, charge-sheet against the petitioner, against which proceedings the petitioner has filed instant petition.
3. Learned counsel for the petitioner has vehemently criticized on the recommendations of the Federal Tax Ombudsman as contained in the impugned order and also the subsequent proceedings initiated against the petitioner in view of the recommendations made in the decision of the Federal Tax Ombudsman. It has been contended by the learned counsel for the petitioner that the recommendations made against the petitioner in the order passed by the Federal Tax Ombudsman on a complaint filed by the petitioner of the vehicle against the Collector of Custom (Preventive), who while exercising powers under Section 195 of the Customs Act, 1969 ordered for confiscation of the vehicle corum non judice and without lawful authority as no complaint whatsoever was filed against the petitioner in respect of order-in-original passed by him. Per learned counsel, since the complaint of the owner against the Collector of Customs (Preventive) and his order dated 05.05.2009 under Section 195 of the Customs Act, 1969 was dismissed and the notices issued as well as confiscation of the vehicle by the Collector of Custom (Preventive) was held to be in order, therefore, there was no occasion for the learned Federal Tax Ombudsman to issue any recommendations against the petitioner who was neither a party in such proceedings nor was ever issued any show cause notice alleging any mal-administration by the petitioner. It is contended by the learned counsel that principles of natural justice have been violated as no opportunity whatsoever has been provided to the petitioner while passing adverse orders against him and issuing recommendations for proceedings against him under removal from service (Special Powers) Ordinance, 2000. Learned counsel further submitted that the petitioner was never served with the impugned decision passed by the learned Federal Tax Ombudsman and has come to know about such decision after a period of about four months on 28.5.2010 when a show cause notice was issued to the petitioner by the respondent pursuant to recommendations of the Federal Tax Ombudsman. It has been further submitted that the order passed by the Collector of Customs (Preventive), Karachi, under Section 195 of the Customs Act, 1969, has duly been set aside by the learned Customs Appellate Tribunal in Customs Appeal No.K-403/2012 vide order dated 13.8.2012 and the order-in-original passed by the petitioner has been restored. Per learned counsel, the petitioner had no option but to approach this Court through instant petition as he could not avail the remedy to file representation before the President of Pakistan in terms of Section 32 of the Federal Tax Ombudsman Ordinance, 2000, whereas the order passed by the Federal Tax Ombudsman is corum non judice and has been passed without having lawful jurisdiction in the case of the petitioner. It has been contended that the impugned order passed by the Federal Tax Ombudsman and the subsequent proceedings initiated by the respondent against the petitioner may be set aside.
4. Conversely, Mr. Asaf Vardag, learned counsel for the respondent No.1 has supported the order passed by the learned Federal Tax Ombudsman and submitted that the Federal Tax Ombudsman has the jurisdiction to entertain the complaint regarding mal-administration and to pass appropriate orders and issue recommendations against any tax official in terms of Sections 9, 13 and 14 of the Federal Tax Ombudsman Ordinance, 2000. Per learned counsel, the jurisdiction of the learned Federal Tax Ombudsman has vast jurisdiction over all the tax officials under the Ordinance, 2000, therefore, the contention of the learned counsel for the petitioner regarding wrongful assumption or jurisdiction in the instant matter is misconceived. It has been further contended that in terms of Section 2 of the Ordinance, the scope of the term mal-administration has been defined, which is very vast and the act of the petitioner under the circumstances fell within the definition of mal-administration, hence the learned Federal Tax Ombudsman was justified to assume the jurisdiction to pass the impugned order and further to issue recommendations against the petitioner. In support of his contention, learned counsel for the respondent has readout the provisions of Section 2, subsection (3), section 9, 13 and 14 of the Federal Tax Ombudsman Ordinance, 2000. Learned counsel for the respondent has also raised an objection as to maintainability of the instant petition and submitted that if the petitioner feel aggrieved by the order of the learned Federal Tax Ombudsman he should have filed a representation before the President of Pakistan in terms of Section 32 of the Federal Tax Ombudsman Ordinance, 2000 instead of filing instant petition. It has been further contended that the departmental proceedings initiated by the concerned departmental authority pursuant to recommendations made by the learned Federal Tax Ombudsman could have been challenged before the appropriate forum and the same cannot be attached through instant petition. Learned counsel while concluding his arguments has submitted that since the instant petition is not maintainable the same is liable to be dismissed.
5. Mr. Dilawer Hussain, learned Standing Counsel has adopted the arguments of the learned counsel for respondent No.1.
6. We have heard both the learned counsel, perused the impugned order passed by the learned Federal Tax Ombudsman and have also examined the available record. It has been noted that the facts as stated in the instant petition with regard to chronology of the events have not been disputed by the respondents, whereas a legal controversy with regard to the jurisdiction and authority of the Federal Tax Ombudsman and subsequent departmental proceedings initiated by the respondents in the case of the petitioner has been raised, which requires decision by this Court. During the course of the argument, learned counsel for the respondent No.1 was directed to assist this Court on the following five points:-
(i) Whether any complaint of mal-administration against the petitioner was pending before the Federal Tax Ombudsman?
(ii) Whether the petitioner was a party to the impugned proceedings before the Federal Tax Ombudsman?
(iii) Whether during pendency of the complaint against the Collector of Customs (Preventive) any show cause notice of mal-administration was issued to the petitioner?
(iv) Whether any opportunity of being heard was provided to the petitioner before passing the impugned order by the Federal Tax Ombudsman?
(v) Whether copy of the impugned order passed by the Federal Tax Ombudsman was supplied to the petitioner?
7. Learned counsel for the respondent No.1, in response to above mentioned queries, has candidly given his reply “in negative”.
8. Before we proceed to examine the propriety of the impugned order passed by the Federal Tax Ombudsman and the validity of the subsequent departmental proceedings initiated in compliance to recommendations made by the Federal Tax Ombudsman in the instant matter we would examine the scope of jurisdiction, functions and powers of the Federal Tax Ombudsman as provided under Section 9 of the Federal Tax Ombudsman Ordinance, 2000. The relevant provision of Section 9 reads as follows:
“9. Jurisdiction, functions and powers of the Federal Tax Ombudsman:- (1) Subject to sub-section (2), the Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee.
(2) The Federal Tax Ombudsman shall not have jurisdiction to investigate or inquire into mattes which-
(a) are subjudice before a court of competent jurisdiction or tribunal or board or authority on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the Relevant Legislation.
(3) ………………………………………………….
(4) ………………………………………………….
(5) ………………………………………………………”
9. From perusal of the provisions of sub-section (1) of section 9, it is seen that the Federal Tax Ombudsman acquires jurisdiction under the Ordinance on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, to investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee. From perusal of sub-section (2) of section 9, it is seen that the assumption of jurisdiction by the Federal Tax Ombudsman under sub-section (1) is subject to provision of sub-section (2) of section 9, which oust the jurisdiction of the Federal Tax Ombudsman to investigate or inquire into mattes, which are subjudiced before a court of competent jurisdiction or tribunal or board or authority on the date of receipt of a complaint, reference or motion by him. Similarly, Federal Tax Ombudsman has no jurisdiction to investigate or inquire into matters, which relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the Relevant Legislation. It has also emerged that the Federal Tax Ombudsman has the jurisdiction only to investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee, which means that unless there is any allegation of maladministration on the part of the Revenue Division or any Tax Employee, no decision, finding or recommendation can be made by the Federal Tax Ombudsman under the Federal Tax Ombudsman Ordinance, 2000. In the instant matter, admittedly, no complaint of maladministration against the petitioner was filed by an aggrieved person nor any reference against the petitioner by the President, the Senate or the National Assembly was made. Neither any motion of the Supreme Court or a High Court was made during the course of any proceedings before it. Even no proceedings of his own motion against the petitioner were initiated by the Federal Tax Ombudsman in the instant matter as evident from the impugned order passed by him. After having examined the facts of the instant case and the provisions of section 9 of the Federal Tax Ombudsman Ordinance, 2000 relating to jurisdiction, functions and powers of the Federal Tax Ombudsman, we are of the considered view that the recommendations made by the Federal Tax Ombudsman against the petitioner in the instant case were corum non judice, without jurisdiction, hence of no legal effect on this account alone.
10. We have further noted that the Federal Tax Ombudsman, while making recommendations against the petitioner for initiation of proceedings under removal from service (Special Powers) Ordinance, 2000, besides wrongful assumption of jurisdiction against the petitioner, has also not followed the procedure as laid down under section 10 of the Federal Tax Ombudsman Ordinance, 2000. It will be advantageous to reproduce the relevant provisions of sub-section (4) and sub-section (6) of section 10, which are attracted to the facts of the instant petition.
“(4) When the Federal Tax Ombudsman proposes to conduct an investigation he shall issue to the Secretary of the Revenue Division, and to the person who is alleged in the complaint to have taken or authorized the action complained of, a notice calling upon him to reply to the allegations contained in the complaint.
(6) A person shall be entitled to appear in person or be represented before the Federal Tax Ombudsman.”
11. From perusal of hereinabove provisions, it is clear that even if it is presumed that through impugned order the learned Federal Tax Ombudsman wanted to assume jurisdiction against the petitioner on his own motion (though in the absence of any complaint of maladministration against the petitioner) he was required to conduct an investigation and to issue a notice to the petitioner calling upon him to reply to the allegations whereafter the petitioner was entitled to appear in person or through a representative before the Federal Tax Ombudsman to rebut the allegations and further to explain his position with regard to allegations against him. Admittedly, no notice was issued to the petitioner nor any opportunity was provided to him before making the impugned recommendations against the petitioner in the instant case, which is not only the violation of the legal procedure provided under the Federal Tax Ombudsman Ordinance, 2000, but also negates the principles of Natural justice, which entitles a person for a fair trial and a reasonable opportunity of being heard. The decision and recommendations against the petitioner under the circumstances are liable to be set aside on this account also.
12. In addition to hereinabove defects, we have also noted that before making any recommendation against the petitioner in the impugned order, the Federal Tax Ombudsman has failed to record any findings against the petitioner to the effect as to how and what mal-administration has been committed by him. We are of the view that in the absence of any such findings regarding any mal-administration against the petitioner, the recommendations made by the learned Federal Tax Ombudsman are of no legal effect and the same are hereby set-aside on this account as well.
13. It will not be out of place to note that even on merits, the Custom Appellate Tribunal vide order dated 13.8.2012 has set-aside the order passed by Collector Customs under Section 195 of the Customs Act, 1969, copy of which order has also been placed on record by the learned counsel for the petitioner
14. Before parting with this judgment, we may observe that all the authorities performing their functions under any statute are required to conduct themselves strictly in accordance with law by remaining within the domain and jurisdiction as vested in them under the law. Every law is required to be administered in such a manner that it may foster the purpose of such legislation and shall not, in any manner, frustrate the same.
15. In view of hereinabove, we are of the opinion that the recommendations made by the Federal Tax Ombudsman against the petitioner to proceed against him under the removal from service (Special Powers) Ordinance, 2000 in Complaint No.367-K/2009 dated 09.06.2009 are without jurisdiction and patently illegal and the same were set aside by our short order dated 28.11.2012 and these are the reasons for such short order. The departmental proceedings initiated against the petitioner in compliance to the said recommendations of the Federal Tax Ombudsman are equally illegal and of no legal effect.
Instant petition stands disposed of in the above terms.
JUDGE
JUDGE